Ernst et al v. City of Chicago

Filing 419

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/5/2014:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STACEY ERNST, et al.,
Plaintiffs,

v.
CITY OF CHICAGO,
Defendant.

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Case No: 08 C 4370
Judge Norgle
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiffs are five women who applied for paramedic positions with the
Chicago Fire Department (“CFD”) beginning in 2004. All five met the requirements for
hire and were placed on the hiring eligibility list. Each took the CFD’s physical ability
test (PAT) and were informed they did not pass and, as a result, were removed from the
hiring eligibility list.

Each filed charges with the Equal Employment Opportunity

Commission and Illinois Department of Human Rights and, subsequently, joined in this
lawsuit against the City on August 1, 2008. Plaintiffs’ complaint alleges that the PAT
adversely impacts female applicants, is not job-related for the paramedic position, and
violates Title VII of the Civil Rights Act of 1964 (“Title VII”); 42 U.S.C. §§ 2000(e) et
seq.1
The City has moved to exclude the expert testimony of both of the plaintiffs’
experts in this case, Dr. William McArdle and Dr. Michael Campion. Although this is
the City’s first attack on Dr. McArdle or Dr. Campion, the reports at issue here have been

1

For the reasons explained in Ernst v. City of Chicago, 2012 WL 27594 (N.D.Ill. 2012), the case
did not proceed as a class action.

discussed and considered on more than one occasion, including during a lengthy oral
argument on the defendant’s motions on February 28, 2014. [Dkt. #402]; see also Ernst
v. City of Chicago, 2013 WL 4804837 (N.D.Ill. 2013). This time around, the City seeks
to bar both expert witnesses from testifying under Fed.R.Evid. 702, Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); and Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999).2
Rule 702 governs the admissibility of expert testimony:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education [to] testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
Under the Rule, the trial judge acts as a “gatekeeper” to ensure that any and all
expert testimony or evidence admitted “is not only relevant, but reliable.” Daubert, 509
U.S. at 589. The insistence on reliability helps to ensure the integrity of the judicial
process, Mid–State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333,
1340 (7th Cir.1989), and is of such transcendent importance that judges can act sua
sponte to prohibit testimony that does not pass muster under Daubert. O'Conner v.
Commonwealth Edison Co., 13 F.3d 1090, 1094 (7th Cir.1994).
While Daubert dealt with scientific testimony, its principles apply equally to nonscientific fields. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49 (1999). And

2

Although Daubert interpreted an earlier version of Rule 702, it remains the gold standard for
evaluating the reliability of expert testimony and is essentially codified in the current version of Rule
702. Manpower, Inc. v. Insurance Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir. 2013); Lees v.
Carthage College, 714 F.3d 516, 521 (7th Cir.2013).

2

so, whatever the nature of the witness's expertise, Rule 702 “establishes a standard of
evidentiary reliability,” “requires a valid... connection to the pertinent inquiry as a
precondition to admissibility,” and mandates that the testimony have “a reliable basis in
the knowledge and experience of [the relevant] discipline.” Kumho Tire, 526 U.S. at 149
(quoting Daubert, 509 U.S. at 590, 592).
Trial court judges have “considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reliable.” Kumho Tire Co.,
526 U.S. at 152; American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 816 (7th Cir.
2010)(“We give the court great latitude in determining not only how to measure the
reliability of the proposed expert testimony but also whether the testimony is, in fact,
reliable . . . .”). But it is primarily a question of the reliability of the methodology
employed by an expert, not the quality of the data used in applying the methodology or
the conclusions produced. “The soundness of the factual underpinnings of the expert's
analysis and the correctness of the expert's conclusions based on that analysis are factual
matters to be determined by the trier of fact, or, where appropriate, on summary
judgment.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000); Goodpaster v.
City of Indianapolis, 736 F.3d 1060, 1068 (7th Cir. 2013).
As Daubert stressed: “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” 509 U.S. at 596. And
so, a trial court that unduly scrutinizes the quality of the expert's data and conclusions
rather than the reliability of the methodology the expert employed usurps the role of the

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jury. Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 766 (7th Cir.2013); Smith, 215
F.3d at 720.
Unfortunately, it’s not always an easy line to draw, for “conclusions and
methodology are not entirely distinct from one another.” Manpower, Inc. 732 F.3d at
806-07; General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). For example, the
Seventh Circuit was not always convinced, as it has been for some time now given
holdings from Smith through Manpower, Inc., that the soundness of the factual
underpinnings of an expert’s opinion were matters for the trier of fact. Earlier on in its
Daubert jurisprudence, the court felt the matter was fair game for a Daubert motion.
See, e.g., Goodwin v. MTD Products, Inc., 232 F.3d 600, 608 (7th Cir. 2000)(“. . . the trial
judge must determine whether [an expert's] . . . testimony had sufficient ‘factual
underpinnings, . . . .’”); Bourelle v. Crown Equipment Corp., 220 F.3d 532, 536 (7th
Cir.2000)(same).

This serves to highlight the difficulty of applying Daubert and

Fed.R.Evid. 702 in the real world.
But, such is the so-called “gatekeeper” role. Like many parties challenging the
admissibility of expert testimony, the City seems to be looking for more than a mere
“gatekeeper.” As the Second Circuit has explained, trial judges acting as gatekeepers do
not assume “the role of St. Peter at the gates of heaven, performing a searching inquiry
into the depth of an expert witness's soul” that would “inexorably lead to evaluating
witness credibility and weight of the evidence, the ageless role of the jury.” McCullock v.
H.B. Fuller Co., 61 F.3d 1038, 1045 (2nd Cir. 1995).

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Dr. McArdle
Regarding the City’s physical abilities test (“PAT”), the plaintiffs intend to have
Dr. McArdle testify that: (1) the City failed to provide proper notification to candidates
of specific test items and scoring requirements, including the failure to provide
notification to candidates of test requirements within a time frame necessary to
adequately train for the exam; (2) the City (and its contractor) misclassified the
physiologic and metabolic demands of the test items; (3) the City (and its contractor)
failed to provide adequate information to candidates as to the proper and most effective
way to prepare for the PAT; and (4) the City failed to provide opportunities for
candidates to view and practice the actual PAT within a sufficient time frame so as to
optimize pre-test exercise training. Dr. McArdle contends that these failures had an
especially pronounced effect on female applicants as, due to inherent sex specific
biologic differences, women have a more difficult challenge achieving the same
performance score on tests of physical fitness as male counterparts of equivalent training
status. He further asserts that the differences in scores between men and women on
physical fitness tests do not equate to women having lesser competence or capacity as
paramedics. To the contrary, Dr. McArdle determined that the PAT, which
disproportionately eliminated female candidates for CFD Paramedic positions, failed
both in describing and evaluating the full spectrum of paramedic responsibilities and
identifying candidates most likely to become competent paramedics. (Dkt. #308, at 5).
The City argues that Dr. McArdle did not employ reliable methods to reach his
conclusions, and that certain of his conclusions were based on nothing more than his ipse

5

dixit.

As for methodology, the City’s contention is based on the premise that Dr.

McArdle deviated from methodology he often employed in the past.
The City also briefly submits that Mr. McArdle, as an exercise physiologist, is not
qualified to offer opinions on the PAT. But this is a poorly developed argument and the
City tends to confuse the issue of Dr. McArdle’s qualifications with the methodology he
employed in this case. Dr. McArdle is certainly qualified to offer opinions on the
efficacy of a physical abilities test in terms of paramedic job requirements. He is an
exercise physiologist with over 45 years of experience in the field. He earned his Ph.D.
in the subject from the University of Michigan in 1965 and has been a professor of
nutrition and exercise science at New York’s Queens College since then. He has also
served as an adjunct professor at Columbia University, Adelphi University, and the
Medical College of New York. He has written dozens of articles in peer-reviewed
journals. He has authored or co-authored eight books, including three widely used
textbooks. His research work on proper design and implementation of research protocols
for studying exercise physiology has been funded by the National Institute of Health, the
Office of Naval Research, and the U.S. Army Medical Research and Developmental
Command. The City’s own expert looked to one of his textbooks as authoritative. (Dkt.
#308, Ex. 1, at 89-90).

Another of the City’s experts acknowledged that exercise

physiology is the salient discipline for determining the nature of a physical strength
involved in various exercises, testing components, and training programs for physical
tests. (Dkt. #308, Ex. 2, at 26-27, 117-118; Ex. 2, at 96).
The City’s main critique of Dr. McArdle is that he did not study the paramedic
job and so has no basis for saying the PAT was an invalid test of whether one could meet

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the demands of that job. But Dr. McArdle read all the City’s expert’s reports – save for
that of his cohort, Dr. Campion – and read not only their deposition transcripts, but those
of the plaintiffs as well. (Dkt. # 276, at 8; Dkt. #402, at 42-44, 54-55). As the City has to
concede, its expert’s report included a detailed job analysis. Thus, Dr. McArdle was able
to garner rather detailed information regarding the requirements of the paramedic job
with the Chicago Fire Department, (Dkt. #402, at 43), and it is inconsequential for
Daubert purposes that, prior to this case, Dr. McArdle may not have conducted a study of
a paramedic’s job in general. Unlike the expert in Obrycka v. City of Chicago, 792
F.Supp.2d 1013, 1024 (N.D.Ill. 2011), Dr. McArdle based his findings on case-specific
materials.
The City also takes Dr. McArdle to task for not using the same methodology in
this case that he used some 30 years ago when he analyzed tests for other city’s police
and fire departments. In those instances, he did ride-alongs with police and fire fighters.
In this case, he did not. But it is not clear why that invalidates Dr. McArdle’s opinion
here. It cannot be that an expert, exercising one method early in his career, is forever
estopped from employing any other method. There is nothing to suggest that the ridealong is what the City calls “the cannonical method” in this type of case or that Dr.
McArdle’s method was somehow inherently flawed. Cf. Braun v. Lorillard Inc., 84 F.3d
230, 234 (7th Cir. 1996)(evidence established the standard method of testing and that the
alternative method employed was likely to produce a false negative result). Interestingly,
the City’s own experts did not follow the so-called “cannonical” method of going on
ride-alongs. (Dkt. #308, at 16).3

3

Had he used a method he employed decades ago, the City would no doubt have faulted him for
(continued...)

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The thoroughness of Dr. McArdle’s study of the paramedic job – reading about it
versus observing it – goes to the weight of his testimony rather than its admissibility.
Manpower, 732 F.3d at 807. This is prime territory for “vigorous cross-examination,”
which, along with “presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596. See also Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 321 (2009)(“. . . methodology . . . [is] commonly the focus
in the cross-examination of experts.”); Goodpaster v. City of Indianapolis, 736 F.3d
1060, 1068 (7th Cir. 2013)(“It is up to the trier of fact, however, to evaluate the
“soundness of the factual underpinnings of the expert's analysis and the correctness of the
expert's conclusions based on that analysis.”).
Finally, the City also calls into question several snippets from Dr. McArdle’s
report for being based on nothing more than his ipse dixit, which is never sufficient.
Manpower, Inc., 732 F.3d at 806; Wendler & Ezra, P.C. v. American Intern. Group, Inc.,
521 F.3d 790, 791-792 (7th Cir.2008); Echo, Inc. v. Timberland Machines & Irr., Inc.,
661 F.3d 959, 965 (7th Cir.2011).4 These include his observations on certain differences
between men and women participating in physical capacity evaluations. In these
instances, Dr. McArdle indicated that he was basing his statements on his decades of
experience in the field of exercise physiology. For example, in the past, he conducted
similar physical capacities tests in his classes. In those tests, he observed that “the

3

(...continued)
using a time-worn methodology and sought to exclude his opinion on that basis.

4

Courts are never allowed to take only on faith whatever a paid expert claims, Minasian v. Standard
Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir.1997), no matter how distinguished his
credentials. Rosen v. Ciba–Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996).

8

women had much more difficulty reaching their plateau than the men.” Rather quickly,
the men would reach a point of exertion such that they would “scream as they pulled.
And the women . . . took . . . a long time to disinhibit themselves to give a true maximal
effort.” (McArdle Dep., 4/23/13, at 133-34). He also has studied males and females
participating in various sports over the years. And the greater exposure men have to
“disinhibitory types of physical activities.” (McArdle Dep., 4/23/13, at 135).
So, Dr. McArdle did not simply offer his ipse dixit; rather, he linked his assertion
to what he has seen and experienced in his work in the field over the years. And that is
perfectly permissible See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761-62
(7th Cir. 2010)(opinions based on what expert had seen and experienced during his time
in the field were admissible). And, again, Dr. McArdle studied the job requirements and
the test at issue. He did not simply eschew reliance on proper methodology and author
an unsupported expert opinion. Cf. Clark v. Takata Corp., 192 F.3d 750, 758 (7th Cir.
1999). And he went beyond simply basing his opinions on “experience” without further
explanation. Cf. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 896 (7th Cir. 2011)(in
some instances, even an expert’s unadorned “conclusion, without more, may be
supportable based on [the expert’s] ‘extensive and specialized experience.’”). At bottom,
the City’s gripe with McArdle’s opinion seems to be that women have changed insofar as
the physical activities they participate in and how they participate since Dr. McArdle
formed such opinions. (Dkt. #276, at 11). But, that is the City’s opinion and in any
event that goes to weight and credibility – not admissibility. Stollings, 725 F.3d at 765;
Lees v. Carthage College, 714 F.3d 516, 526 (7th Cir. 2013).

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Dr. Campion
The plaintiffs retained Dr. Campion to conduct an adverse impact analysis of the
PAT, and to offer a critique of the test’s validation, design, and implementation. Dr.
Campion found that the PAT “had a significant adverse impact against women
applicants” overall, each time it was administered, in each of its component parts, and as
a whole; the validation study, according to Dr. Campion, “does not demonstrate the
validity of the... [PAT] used... to hire paramedics or adequately consider alternatives.”
(Campion Rebuttal Report, at 4). He further concluded that the job analysis overemphasized physical tasks and based requirements on the most demanding task, thereby
increasing adverse impact.
It did not, he concluded, measure whether the abilities were necessary at hire or
could be learned after hire, did not consider other abilities that would have lessened
adverse impact, and did not accurately reflect the realities of the job as the analysis was
done 13 years ago. He felt the test was developed with little consideration of its adverse
impact, including the components that would result in large gender differences – such as
tests of maximum performance – with mathematical certainty. (Campion Rebuttal
Report, at 24-25). The test was validated in a manner that was weak for the selection
procedures used, that merely correlated one physical test with another and not the actual
job, and that encouraged gender stereotypes to operate. (Campion Rebuttal Report, at 611; 3-12; Campion Dep., 4/30/2013, at 22). Dr. Campion also concluded that the
passing score was set too high. (Campion Rebuttal Report, at 9). He proposed several
less discriminatory alternatives to the City’s PAT (Campion Rebuttal Report, at 12-13),

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and responded to each of the City’s and its experts’ rebuttals. (Campion Rebuttal Report,
at 12-51).
The City can’t decide how it feels about Dr. Campion’s qualifications to testify on
these matters. It argues in its brief that he is not qualified because he never studied the
paramedic job. (Dkt. # 274-1, at 8). Then, at oral argument, the City stated that it had no
issue with Dr. Campion’s qualifications; it had no Fed.R.Evid. 702(a) objection. (Dkt. #
402, at 59). But a brief time later, the City contradicted itself and suddenly contended he
was not qualified. (Dkt. # 402, at 66). So it is hard to say whether the City is challenging
his qualifications or not. The result is the same, however.
Dr. Campion holds a Ph.D. in Industrial and Organizational Psychology, and has
been a professor of management at Purdue University since 1986. He has published over
100 peer-reviewed articles and given over 200 peer-reviewed presentations. A number of
these publications certainly would seem to apply to the issues he speaks to in this case:
Morgeson, F.P., Campion, M.A., & Bruning, P.F., Job & Team Design, in G. Salvendy,
Handbook of Human Factors and Ergonomics (4th ed.)(in press); Morgeson, F.P. &
Campion, M.A., Social and Cognitive Sources of Inaccuracy in Job Analysis, 82 J. of
Applied Psychology 627 (1997); Campion, M.A., Ability Requirement Implications of
Job Design: An Interdisciplinary Perspective, 42 Personnel Psychology 1 (1989);
Campion, M.A., Interdisciplinary Approaches to Job Design: A Constructive
Replications with Extensions, 73 J. of Applied Psychology 467 (1988); Campion, M.A. &
Thayer, P.W., Development and Field Evaluation of an Interdisciplinary Measure of Job
Design, 70 J. of Applied Psychology 29 (1985); Campion, M.A., Personnel Selection for
Physically Demanding Jobs: Review and Recommendations, 36 Personnel Psychology

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527 (1983); Campion, M.A. & Phelan, E.J., Biomechanics and the Design of Industrial
Jobs, 60 Personnel J. 949 (1981).
Dr. Campion’s areas of expertise include job analysis, work design, and testing
and assessment. He has spent his career researching candidate selection for physically
demanding jobs and designing jobs to reduce physical ability demands. He has been the
editor of the Personnel Psychology journal and president of the Society for Industrial and
Organizational Psychology. See generally http://www.siop.org/Presidents/campion.aspx.
If this does not qualify him to speak on the topics at hand, it is unclear what more the
City supposes one would need or what field would be more apropos. The City’s own
expert on these issues, Dr. Jacobs, is an industrial/organizational psychologist. The
question of adverse impacts of employment testing and alternative testing are certainly in
the wheelhouse of the industrial/organizational psychologist.

See, e.g., Brief of

Industrial-Organizational Psychologists as Amici Curiae in Support of Respondents,
Ricci v. DeStefano, 557 U.S. 557 (2009), 2009 WL 796281; Amy L. Wax, Disparate
Impact Realisim, 53 Wm. & Mary L. Rev. 621 (2011).
Consequently, this case is nothing like Ralston v. Smith & Nephew Richards, Inc.,
275 F.3d 965 (10th Cir. 2011) – relied upon by the City – where the expert, a physician
whose expertise was in oncology, admitted she knew nothing about the use of orthopedic
nails to treat fractures. Id. at 969. That doctor had never studied the matter and had
never been published on any matter. Accordingly, the court ruled the testimony
inadmissible. Unlike the expert there, however, Dr. Campion is clearly operating “within
the reasonable confines of his subject area . . . .” Id. at 970.

12

As with Dr. McArdle, the City’s gripe with Dr. Campion’s qualifications seems
more an attack on his methodology. The City complains that Dr. Campion’s general
experience does not allow him to opine about a specific job in a specific city. Echoing its
critique of Dr. McArdle, the City complains that Dr. Campion did not perform a handson analysis of the CFD paramedic job. But, as the City eventually has to concede, Dr.
Campion did gather information about the job through reading (Dkt. # 402, at 73-74) – a
fact stubbornly ignored by the City even as late as oral argument.
In addition, in regard to alternative testing, Dr. Campion did some internet
research into how other cities vet their applicants. Of course, it seems that internet
research is all the rage, even in the most serious and august quarters, where one would
expect rigorous methodology was de rigeur. See Conrad v. AM Community Credit
Union, 2014 WL 1408635, 2 (7th Cir. 2014); Krien v. Harsco Corp., 745 F.3d 313, 316
(7th Cir. 2014); Wourms v. Fields, 742 F.3d 756, 758 (7th Cir. 2014); National Union Fire
Ins. Co. of Pittsburgh, Pa. v. Mead Johnson & Co. LLC, 735 F.3d 539, 542 (7th Cir.
2013). See also Richard Posner, Remarks on Appellate Advocacy, 9 The Circuit Rider,
17, 18 (Nov. 2009).
For example, Dr. McArdle looked into what the town of Gulf Breeze, Florida,
does. The City complains that such a little town would seem to have nothing to do with a
city the size of Chicago (Dkt. # 78) and, intuitively, that would seem a fair criticism.
But that’s a question of the quality of data Dr. Campion used and the factual
underpinnings of his conclusions. These are matters for cross examination and the trier
of fact. Goodpaster, 736 F.3d at 1068; Manpower, Inc., 732 F.3d at 806. Moreover, Dr.
Campion didn’t stop at Gulf Breeze – he also looked into what Philadelphia and St. Louis

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did. (Dkt. # 79). And so, unlike the expert in Obrycka, 792 F.Supp.2d at 1024, Dr.
Campion based his findings on case-specific materials. Moreover, the striking of the
expert in Obrycka was all but necessitated by the fact that the expert disavowed his own
method. Id. at 1028 & n.13.
Beyond that, Dr. Campion had his wealth of experience in the field to draw upon.
Fed.R.Evid. 702 specifically contemplates the admission of testimony by experts whose
knowledge is based on experience. Summers v. State Street Bank & Trust Co., 453 F.3d
404, 412 (7th Cir. 2006); Walker v. Soo Line R.R., 208 F.3d 581, 591 (7th Cir. 2000).
Indeed, even the Supreme Court has acknowledged that “no one denies that an expert
might draw a conclusion from a set of observations based on extensive specialized
experience.” Kumho Tire, 526 U.S. at 156.
As it did with Dr. McArdle, the City also takes Dr. Campion to task for failing to
adhere to certain methodologies he had employed in the past. See, e.g., E.E.O.C. v. Dial
Corp., 469 F.3d 735 (8th Cir. 2006)(observed the job and spoke with workers). But, as
with Dr. McArdle, there is nothing to suggest that those methods were “cannonical” and
that no other methods may be reliably employed. Cf. Braun, 84 F.3d at 234 (evidence
established the standard method of testing and that the alternative method employed was
likely to produce a false negative result). “[E]xperts in various fields may rely properly
on a wide variety of sources and may employ a similarly wide choice of methodologies
in developing an expert opinion.” Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020
(7th Cir. 2000). The City is free to alert the jury to Dr. Campion’s change in methodology
and attempt to undermine the method he used this time on cross-examination. Melendez-

14

Diaz, 557 U.S. at 321; Tussey v. ABB, Inc., – F.3d –, –, 2014 WL 1044831, 7 (8th Cir.
2014); Howard v. Walker, 406 F.3d 114, 127 (2nd Cir. 2005).
The City contends that Dr. Campion did not conduct any statistical analysis of the
PAT or independently assess the data the validation study relied upon. On the contrary,
Dr. Campion’s two reports evince a rather thorough analysis of the data the City
provided. (Dkt. # 274-2, at 13-20; # 274-4, at 13-15, 39-41). It is not clear what more
the City thinks is required here. To the extent the City finds flaws in the factual
underpinnings of Dr. Campion’s opinions – for example, whether Dr. Campion had to
review the cost figures for various alternate testing methods – that is a matter for the trier
of fact. Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1068 (7th Cir. 2013)(“It is up
to the trier of fact, however, to evaluate the “soundness of the factual underpinnings of
the expert's analysis . . . .”); Manpower, Inc., 732 F.3d 796, 806 (7th Cir. 2013).
The City also takes issue with some of Dr. Campion’s phrasing. At some points
in his report, he uses qualifiers like “might,” “it’s possible,” “appear to be,”
“potentially,” “would likely,” or “could.” It’s not entirely clear, but the City seems to
suggest that this is rank speculation that cannot be admitted as expert testimony. It’s true
that the courtroom is no place for guesswork, even for inspired scientific guesswork.
Myers v. Illinois Central R. Co., 629 F.3d 639, 645 (7th Cir. 2010). But when read in
context, Dr. Campion’s opinions do not appear to be true speculation. This is not a case
where the expert had no information or data on which to base his opinion, rendering it
mere speculation. See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 896 (7th Cir.
2011); Trustees of Chicago Painters and Decorators Pension, Health and Welfare, and
Deferred Sav. Plan Trust Funds v. Royal Intern. Drywall and Decorating, Inc., 493 F.3d

15

782, 788 (7th Cir. 2007)(distinguishing between opinions based on subjective belief and
those rooted in specialized knowledge); see also Schultz v. Akzo Nobel Paints, LLC, 721
F.3d 426, 432 (7th Cir. 2013)(allowing that careful scientists might not express their
opinions unreservedly); Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010)(expert need
not testify with complete certainty).
Should they turn out to be, however – or if some of Dr. Campion’s conclusions
are weaker than others – those conclusions can be scuttled through skillful crossexamination. Manpower, Inc., 732 F.3d at 809 (expert’s reliance on faulty information
was a matter for cross-examination); Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426,
432 (7th Cir. 2013)(“Our system relies on cross-examination to alert the jury to the
difference between good data and speculation.”).
CONCLUSION
In essence, the City is asking the court to supplant the adversarial process and to
substitute itself for the jury. This, a court cannot do. Manpower, Inc., 732 F.3d at 810
(overturing district courts barring of expert testimony where the court’s rulings were
“roadmap for . . . cross-examination”). The defendant’s motions to bar the testimony of
the plaintiffs’ expert witnesses [#273, 275] is DENIED.

ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 5/5/14

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